Elected officials overstep their authority on same-sex marriage

Pennsylvania Attorney General Kathleen Kane found Pennsylvania’s ban on same-sex marriage to be “wholly unconstitutional” and thus decided she could not ethically defend the statute from a legal challenge.

Which would be nice if she were a judge. She’s not. She’s the elected top law enforcement officer in the Commonwealth, sworn to enforce the laws. All of them, not just the ones she has decided are not “wholly unconstitutional.”

Last week we heard from someone who actually is a judge. That would be Commonwealth Court Judge Dan Pellegrini. He had some advice for Kane, and Montgomery County Register of Wills D. Bruce Hanes.

Do your jobs.

In Kane’s case, that would seem to mean enforce the laws, including those she may personally disagree with.

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In Hanes’ situation, it’s more of a don’t do your job, at least the way Hanes has been interpreting it.

No doubt inspired by the attorney general’s stand against the state’s same-sex wedding ban, saying she would not defend the state and Gov. Corbett in the matter, Hanes decided to speed things up and started handing out same-sex marriage licenses, despite the fact that there is a perfectly good law on the books saying such unions are not legal in Pennsylvania.

Hanes’ explanation echoed the Kane Mutiny. He also believed Pennsylvania’s law to be unconstitutional, thus he should be not compelled to abide by it. He noted he wanted to be on the “right side of history.”

Both he and Kane may yet get the chance to do just that. They just went about it the wrong way.

This argument is not about the same-sex marriage ban. We concur that the law should be overturned. But not by the attorney general. Nor a register of wills.

Last time we looked, neither are judges, nor elected members of the Legislature. Those are the only two acceptable avenues to right this wrong.

Judge Pellegrini made clear he was not ruling on the constitutionality of the state’s same-sex marriage ban, but he made abundantly evident where he believed that decision lies: In the courts.

“A clerk of courts has not been given the discretion to decide … whether the statute he or she is charged to enforce is a good idea or bad one, constitutional or not. Only courts have the power to make that decision.

Not the attorney general. Nor the register of wills.

Pellegrini thus immediately ordered Hanes to stop issuing licenses to same-sex couples. The register of wills said he would comply with the judge’s order while deciding whether to appeal.

In the meantime, the status of the 118 same-sex couples who have already wed and another 56 with licenses in hand who have not yet exchanged vows remains a bit unclear.

Presumably those already wed will remain so, and those who have yet to tie the knot will have to wait.

The state Health Department, which lords over records such as wedding licenses, filed suit in July after Hanes started issuing licenses to same-sex couples.

Hanes made his splash just a few weeks after Kane’s glitzy announcement in front of a wildly cheering crowd at the National Constitution Center that she could not bring herself to defend the state law.She in turn had made her stand just a few weeks after the historic U.S. Supreme Court ruling.

Kane argues she has every right not to defend a law she believes is unconstitutional. We disagree. If that was her personal belief, we would have no qualm with her stand. In fact we might stand beside her.

But this isn’t personal. This is business. The business of defending the law in Pennsylvania as the elected attorney general. You don’t get to pick and choose which laws you like or which you believe to be constitutional. The Legislature writes the laws; the courts interpret them. The attorney general defends them.

All of them.

The Kane Mutiny clearly inspired Hanes. After Judge Pellegrini raised a little Kane of his own this week, Hanes stood his ground, saying he was “more convinced today that I am on the right side of history.”

But, and this goes for Kane as well, the wrong side of the law.

We still hope the Pennsylvania Legislature realizes shifting public opinions on this divisive issue and approves gay-marriage laws that would overturn the state’s same-sex ban. That’s their job.